In association with the International Commission of Jurists

Search: unwilling or unable

03 Jul

...airport, which is steadily opening up to foreign and domestic flights and becoming the main transport hub of the country. It is nominally now under the control of the Tripoli administration, but the Zintani presence is still very much there to see. I’m not sure how a non-state actor holds a credible trial of Saif. But it’s clear that, at least for the foreseeable future, Libya as a state remains “unable” to prosecute Saif for purposes of its admissibility challenge. The Pre-Trial Chamber should thus reject that challenge until the...
03.07.12 | |

01 Jun

reasons why Libya’s is unable to genuinely prosecute Saif within the meaning of Art. 17(3) of the Rome Statute, which deems a state “unable” if, “due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings.” First, the PTC notes that Libya has not demonstrated that is is able to obtain Saif from the Zintan militia that is holding him: 207. The Chamber has no...
01.06.13 | |

05 Jun

...person being killed was located within or outside the territory of the state which is doing the killing. So: (1) Imagine an Osama Bin Laden clone, who is equally nefarious, but who had nothing to do with 9/11 and is in no way affiliated with Al Qaeda. Let’s call him Mephistopheles. Old Mephisto has his own terrorist cabal somewhere in Pakistan, and plans an imminent attack on a US city, say with a dirty bomb or something equally horrific. Pakistan’s military is either unwilling or unable to prevent Mephisto from...
05.06.10 | |

24 Jul

...of the army and the police [in Libya], which are responsible for the security of the state. Armed groups are not under control…. State-building needs to build security institutions first and foremost because with no security there can be no investments, building a real state, nor an effective criminal justice system to protect rights and freedoms. ICC Appeals Chamber, 24 July 2014: The Appeals Chamber concluded that there were no errors in the findings of the Pre-Trial Chamber that Libya is not unwilling or unable to genuinely prosecute Mr Al-Senussi....
24.07.14 | |

19 Jul

...Century: Soviet Union- Established gun control in 1929. From 1929 to 1953, about 20 million dissidents, unable to defend themselves, were rounded up and exterminated. Turkey- Established gun control in 1911. From 1915 to 1917, 1.5 million Armenians, unable to defend themselves, were rounded up and exterminated. China- Established gun control in 1935. From 1948 to 1952, 20 million political dissidents, unable to defend themselves, were rounded up and exterminated. Germany- Established gun control in 1938. From 1939 to 1945, 13 million Jews and others, unable to defend themselves, were...
19.07.08 | |

17 Oct

...race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.” Additionally – and especially relevant here – a person who meets the above criteria can be “excluded” from refugee status if “there are...
17.10.22 | |

22 Mar

...The statement does not make it clear whether these three criteria need to be read together or independently. If three are read together, the second feature does not go along with the first and the third. If the first and third features are read together, the result is similar to the attributability in determining the host State’s role. The second feature goes closer to the unable or unwilling test as subscribed to by some States. It goes further as it refers to the unwillingness to address the ‘threat’ and not...
22.03.21 | |

20 May

...on the notion that, “[t]here is nothing in international law that …prohibits us from using lethal force against our enemies outside of an active battlefield, at least when the country involved consents or is unable or unwilling to take action against the threat.” (i.e., an Al Qaeda commander who is fighting the United States in Afghanistan but has traveled to Yemen seeking recruits and cash for arms.) First, I should make clear that lethal targeting outside an active battlefield is, in certain circumstances, permissible under international law. For example, as...
20.05.13 | |

12 Mar

...to quite a number of interesting expressions of opinio juris of various States (for a comprehensive overview, readers may wish to keep an eye on the forthcoming Digest of State Practice in the Journal on the Use of Force and International Law). (One final thing: like Marty and others I believe an ‘unable and unwilling’ test must be regarded as an aspect of the necessity assessment. By contrast, the question whether there is need for State imputability, or some other form of ‘substantial involvement’ by a State, for cross-border attacks...
12.03.15 | |

23 Feb

That may seem like a ridiculous question. After all, Libya is doing everything in its power to prosecute Saif domestically — and he is facing a variety of charges that carry the death penalty. But consider the text of Art. 17(2), the “unwillingness” prong of the the admissibility test: In order to determine unwillingness in a particular case, the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable… (a) The proceedings were or are...
23.02.13 | |

19 Nov

...existence. By the same token, the sad reality is that the ICC’s complementarity jurisprudence – premised on the false dichotomy between ‘inaction’ and ‘unable and unwilling’ – long ago became a fig leaf for institutional self-preservation. Second, and more significantly: CAR is, in fact, ‘unable’ to prosecute Yekatom. Why? Because Yekatom arguably benefits from parliamentary immunity. Despite its hybrid composition, the SCC is a national court fully integrated into the CAR justice system, which means it cannot ignore Yekatom’s constitutionally-guaranteed immunity. As explained in my article (pp. 195-199), this should...
19.11.18 | |

23 Jan

...IHL does not apply. There cannot be a governing war/armed conflict paradigm without an armed conflict and therefore a IHRL paradigm would govern. The "naked self-defense" rationale stands on shaky legal ground at best, evidenced by Anderson's own words: "the possibility that there might be instances in which the United States would engage in uses of force under self-defense that would not necessarily be part of an armed conflict in a technical legal sense"...again, outside of armed conflict, IHL does not apply. Furthermore, rationalizing its invocation based on the unable/unwilling...
23.01.12 | |